Monday, March 16, 2015

It's possible to violate the right of publicity intentionally but innocently

Jewel took out a page in a commemorative issue of Sports Illustrated congratulating
Michael Jordan on his 2009 induction into the Hall of Fame.Time asked Jewel to design a one-page ad for
its special issue “with some play on words or design that is specific to
Michael Jordan.”Its solicitation
included examples of ads designed for a similar commemorative issue celebrating
the Philadelphia Phillies' 2008 World Series win; those ads incorporated the
Phillies’ logo and name. A Time vice president agreed that “acceptance of [the
offer] would require the content [of the ad] to at least have something to do
with Michael Jordan.”Jewel didn’t pay,
but but did agree to stock and sell the commemorative issue at special displays
by the checkout counters of its stores. The ad says “Jewel-Osco salutes #23 on
his many accomplishments as we honor a fellow Chicagoan who was ‘just around
the corner’ for so many years,” referencing its slogan, which is also printed
below its logo: “Good things are just around the corner.”

Jordan sued for violation of his statutory Illinois right of
publicity.(There were Lanham Act
claims, but Jordan agreed to dismiss them—perhaps noting that publicity rights
plaintiffs may do better when they only bring publicity claims; a Lanham Act
claim occasionally reminds courts of the more vigorous First Amendment defenses
available in false endorsement cases.)Jewel filed third-party claims against publisher Time (and the page’s
designer, Vertis, now in bankruptcy) for contribution and indemnification.Time counterclaimed against Jewel for breach
of contract and indemnification. The
Seventh Circuit previously held that Jewel’s ad was commercial speech within
the meaning of the First Amendment, but did not rule on the ultimate merits
of the right of publicity claim.

Jordan moved for summary judgment on liability as to his right
of publicity claim. The Illinois law provides: “A person may not use an
individual’s identity for commercial purposes … without having obtained
previous written consent[.]” The only contested issue was whether the ad served
a “commercial purpose,” defined in the statute as “the public use or holding
out of an individual's identity (i) on or in connection with the offering for
sale or sale of a product, merchandise, goods, or services; (ii) for purposes
of advertising or promoting products, merchandise, goods, or services; or (iii)
for the purpose of fundraising.”

Jordan argued that the Seventh Circuit ruling conclusively
established a “commercial purpose” within the meaning of the law, but the court
of appeals made clear that it wasn’t resolving the state law issues.(E.g., “It is true that each of the statutory
and common-law claims alleged here has a ‘commercial’ element in one form or
another, but it’s not clear that the Supreme Court’s commercial-speech doctrine
should be used to define this term in each cause of action.”)Because all Jordan did was argue that the
Seventh Circuit had resolved the issue, his motion for summary judgment failed.

Time argued that Jewel had no right of contribution because the
right of publicity is an intentional tort, and Illinois law prohibits
intentional tortfeasors from seeking contribution from co-tortfeasors. Jewel
argued that it was possible to violate the right unintentionally, given that
the right of publicity statute allows for punitive damages for “willful[]”
violations, and Illinois law holds that “unlike intentionally tortious
behavior, conduct characterized as willful and wanton may be proven where the
acts have been less than intentional.” It thus followed, Jewel argued, that a
tortfeasor could violate the law not intentionally, but only negligently or
recklessly. That was wrong, because “willful” in the contest of punitive
damages meant “in bad faith” or “with malice,” orthogonal to the question of
whether a tort was intentional or unintentional.For example, publishing a photo in an ad with
the honest but incorrect belief that one has permission is intentional, but not
malicious or willful. Thus, Jewel was barred from any contribution from Time. “One
cannot accidentally create an ad using another’s likeness and then publish it
without consent—even though one can do so innocently.”

Jewel’s third-party indemnity claim against Time required it
to establish a pre-tort relationship between the parties, plus that it was
subject to derivative liability for the acts of Time (that is, that Time was
truly at fault and that Jewel was only strictly liable for some reason).The wholesaler/retailer relationship alleged
was insufficient to create the necessary relationship, and Jewel’s liability
wasn’t derivative of Time’s.

The only claims remaining were state-law, but given the time
invested, the court would continue to exercise supplemental jurisdiction over
them.

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